Northrup v. City of Toledo Police Dep't

• Decision Date: 13 May 2015
• Docket Number: No. 14–4050.,14–4050.
• Citation: 785 F.3d 1128
• Parties: Shawn NORTHRUP, Plaintiff–Appellee, v. CITY OF TOLEDO POLICE DEPARTMENT; David R. Bright ; Daniel Ray, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

785 F.3d 1128

Shawn NORTHRUP, Plaintiff–Appellee

v.CITY OF TOLEDO POLICE DEPARTMENT; David R. Bright ; Daniel Ray, Defendants–Appellants.

No. 14–4050.

United States Court of Appeals, Sixth Circuit.

May 13, 2015.

ON BRIEF:John T. Madigan, City of Toledo Department of Law, Toledo, Ohio, for Appellants. Daniel T. Ellis, Lydy & Moan, Ltd., Sylvania, Ohio, for Appellee.

Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

On a midsummer evening, Shawn and Denise Northrup went for a neighborhood walk with their daughter, grandson, and dog. Apparently in a happy-go-lucky mood, Shawn wore a t-shirt reading, “This Is The Shirt I Wear When I Don't Care.”

R. 28 at 7–8. Shawn carried a cell phone, which he holstered on his hip—next to a black semiautomatic handgun.

A passing motorcyclist stopped to complain about Shawn's visible firearm. The stranger, Alan Rose, yelled, “[Y]ou can't walk around with a gun like that!” But “[O]pen carry is legal in Ohio!” Denise responded. Id. at 28. As the Northrups walked away, Denise and Rose exchanged increasingly unprintable words until he was out of view (and earshot).

Rose called 911, reporting that “a guy walking down the street” with his dog was “carrying a gun out in the open.” R. 39 at 22–23. When asked what type of gun the guy was carrying, Rose replied, “A handgun, and he's telling me it's legal to carry out in the open.” Id. at 23. That's right, the dispatcher responded, it's legal “[i]f you have a CCW”—a concealed-carry weapon permit. “I'll get a crew out though.” Id. The legality of Northrup's behavior threw Rose for a loop, prompting him to add: “I'm not going to call a crew out if it's legal to carry a gun out in the open.” Id.

Despite Rose's change of heart, the dispatcher sent an officer to the scene anyway. “I'm not an officer,” she worried. Id. She dispatched Officer David Bright with the message that someone was “walking his dog on Rochelle [Road] carrying a handgun out in the open.” R. 26 at 35, 115. Ten minutes later, Bright spotted the Northrups, their dog, and the “gun on [Shawn's] hip.” Id. at 36. He got out of his vehicle, said “excuse me, sir,” and asked Shawn to hand the dog's leash to his wife, which Shawn did.Id. at 37.

At that point, according to Officer Bright, Shawn pulled out his cell had been—“in what [Officer Bright] believed to be furtive movement.” phone, then “moved his hands back toward his weapon”—where his cell phone Id. Bright asked Shawn to turn around with his hands over his head. Id. at 38. Rather than comply, Shawn “kept asking” why Bright was there. Id. And rather than answer, Bright “walked up and unsnapped and temporarily took possession of his firearm.” Id.

Shawn adds these details. Before Officer Bright emerged from his car, Shawn began holding his phone (and leash and arms) out in front of him to record the interaction. Bright walked up with “his hand on his firearm,” announced that if Shawn “go[es] for the weapon, he's going to shoot,” and refused to answer any of Shawn's questions, such as: “[W]hat was going on?” “[A]m I free to go?” “[A]m I under arrest here?” R. 28 at 33–35. After Bright disarmed Shawn and explained he was responding to a call, Bright demanded Shawn's driver's license and concealed-carry permit. Shawn gave Bright his license, but Denise told Bright to look up the permit himself, prompting Bright to threaten to “arrest [Shawn] for inducing panic right now.” Id. at 36.

At that point, Bright placed Shawn in handcuffs and put him in the squad car. Bright suspected Shawn had committed the Ohio offense of “inducing panic.” R. 26 at 47; see Ohio Rev.Code § 2917.31. After Bright looked up Shawn's driver's license, he discovered that Shawn had a concealed-carry permit—making the family walk (dog, cellphone, gun, and all) legal. After about a half hour and after another officer (Sergeant Daniel Ray) arrived, Officer Bright released Shawn with a citation for “failure to disclose personal information.” Ohio Rev.Code § 2921.29(A)(1). The police later dropped that charge.

Shawn Northrup sued Officer Bright, Sergeant Ray, and other members of the Toledo Police Department in federal court, alleging violations of his rights under the First, Second, Fourth (and Fourteenth) Amendments as well as state law. The district court granted the officers' summary judgment motion in part, rejecting Northrup's First and Second Amendment claims as a matter of law. But it permitted his Fourth Amendment and state-law claims against Bright and Ray to go to trial. The officers filed this interlocutory appeal.

Officer Bright claims that he had a “reasonable suspicion” that Northrup was engaged in criminal activity based on two undisputed facts: (1) Northrup was visibly carrying a gun on his holster, and (2) Bright was responding to a 911 call. That reasonable suspicion, Bright claims, justified his disarmament, detention, and citation of Northrup. Before addressing whether he is right, we should mention a few guiding principles.

Qualified immunity protects the officers from this lawsuit if either of two things is true: The officers did not violate Northrup's Fourth Amendment rights, or any such rights were not clearly established at the time of the search. Summary judgment is appropriate if no material fact dispute clouds the officers' defense and if they are entitled to judgment as a matter of law. And the nonmovant—here Northrup—gets the benefit of all reasonable inferences in the record.

The Fourth Amendment protects “the people” from “unreasonable searches and seizures.” U.S. Const. amend. IV. The guarantee does not prevent the police from initiating “consensual encounter[s]” with individuals—from approaching them on public streets and in other public places and asking them questions. United States v. Drayton, 536 U.S. 194, 200–01, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). But it does prevent the police from stopping and frisking individuals in the absence of “reasonable suspicion” that the individual has committed, or is about to commit, a crime. Terry v. Ohio, 392 U.S. 1, 21, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). More than an “inchoate and unparticularized suspicion or ‘hunch’ ” is needed to stop and frisk an individual; the officer must identify “specific and articulable facts” of criminality. Id. at 27, 88 S.Ct. 1868.

The facts of Terry make the abstract more concrete. A Cleveland police officer noticed two young men pacing outside a store and closely scrutinizing it. Id. at 5–6, 88 S.Ct. 1868. Afraid the two men might be planning an armed robbery—“casing” the joint in the Court's words—the officer approached the men, identified himself as a police officer, and asked what they were doing. Id. at 6–7, 88 S.Ct. 1868. The men were evasive, leading the officer to spin one of the men around and pat down his clothing to check if he was armed. Id. He was. The officer found a concealed—and illegal to possess at the time—handgun. Id. When the Supreme Court considered the men's argument that this “stop and frisk” amounted to an unreasonable search and seizure, Chief Justice Warren wrote for eight Justices that police officers may reasonably intrude into a pedestrian's personal security if they can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868.

In today's case, Officer Bright relies on two “specific and articulable facts”: Northrup's open possession of a firearm and the 911 call about what Northrup was doing. The Fourth Amendment no doubt permitted Bright to approach Northrup and to ask him questions. But that is not what he did. He relied on these facts to stop Northrup, disarm him, and handcuff him. Ohio law permits the open carry of firearms, Ohio Rev.Code § 9.68(C)(1), and thus permitted Northrup to do exactly what he was doing. While the dispatcher and motorcyclist may not have known the details of Ohio's open-carry firearm law, the police officer had no basis for such uncertainty. If it is appropriate to presume that citizens know the parameters of the criminal laws, it is surely appropriate to expect the same of law enforcement officers—at least with regard to unambiguous statutes. Heien v. North Carolina, –––U.S. ––––, 135 S.Ct. 530, 540, 190 L.Ed.2d 475 (2014).

Clearly established law required Bright to point to evidence that Northrup may have been “armed and dangerous. ” Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (emphasis added). Yet all he ever saw was that Northrup was armed—and legally so. To allow stops in this setting “would effectively eliminate Fourth Amendment protections for lawfully armed persons.” United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) ; accord United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.2000) ; United States v. Black, 707 F.3d 531, 540 (4th Cir.2013) ; United States v. Roch, 5 F.3d 894, 899 (5th Cir.1993).

This requirement and the impropriety of Officer Bright's demands are particularly acute in a State like Ohio. Not only has the State made open carry of a firearm legal, but it also does not require gun owners to produce or even carry their licenses for inquiring officers. See Ohio Rev.Code §§ 9.68(C)(1), 2923.12 ; Mike DeWine, Ohio Att'y Gen., Ohio's Concealed Carry Laws and License Application 15 (2015) (“Ohio's concealed carry laws do not regulate ‘open’ carry of firearms. If you openly carry, use caution. The open carry of firearms is a legal activity in Ohio.”); R. 26 at 121 (“If an officer engages in a conversation with a person who is carrying a gun openly, but otherwise is not committing a crime, the person cannot be required to produce identification.”).

What about the verbal dispute between the Northrups and the motorcyclist? Doesn't that justify Bright's suspicion that the Northrups were engaged in criminal activity? No, for at least two reasons. There is no evidence that Bright knew about the dispute: All that the dispatcher...